[2023] KEHC 17575 (KLR)
The court found that since the appeal had been allowed and the Respondent's suit in the lower court was dismissed, the Appellant, as the successful party, was entitled to the release of the security deposit. The deposit, held in a joint interest-earning account as security for due performance of the decree, was no...
Source-derived case information.
- Citation
- [2023] KEHC 17575 (KLR)
- Parties
- Appellant: Bank of Africa Kenya Ltd; Appellant: Garam Investments (Auctioneers); Respondent: Elijah Jacktone Odhiambo Mugah; Respondent: George Ochieng
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 34 of 2020
- Procedural Posture
- Civil Appeal / Ruling on Application for Release of Security Deposit Post Appeal
- Outcome
- application allowed; security deposit released to appellant; file closed
- Judges
- RE Aburili
- Legal Topics
- Security for Due Performance, Release of Deposit, Appeal Successful Party, Monetary Decree
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bank of Africa Kenya Ltd
Appellant
Garam Investments (Auctioneers)
Appellant
Elijah Jacktone Odhiambo Mugah
Respondent
George Ochieng
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Release of Security Deposit Post Appeal
Legal Issues
- 1 Whether the Appellant is entitled to the release of the security deposit following the successful appeal.
- 2 Whether the Respondent's suit having been dismissed entitles the Appellant to the deposited funds.
Ratio Decidendi
The court found that since the appeal had been allowed and the Respondent's suit in the lower court was dismissed, the Appellant, as the successful party, was entitled to the release of the security deposit. The deposit, held in a joint interest-earning account as security for due performance of the decree, was no longer required to be held since the basis for its retention had ceased to exist. The court therefore ordered the release of the sum of Kshs 738,750 plus all accrued interest to the Appellant's account and directed closure of the joint account upon release of the funds. No order as to costs was made, and the file was closed.
Court Disposition
application allowed; security deposit released to appellant; file closed
Orders
- The sum of Kshs 738,750 together with all accrued interest deposited in Account No. xxxx at Equity Bank, Angawa Branch, Kisumu in the joint names of Oundo Muriuki & Company Advocates and Omondi & Company Advocates is to be released to the Appellant’s Account at Bank of Africa Limited, Account No. xxxx in the name of...
- The said Bank Account Number xxxx at Equity Bank, Angawa Branch, Kisumu, shall upon the release of the said sums of money, be closed forthwith.
Full Case Text
Judgment text and source record
29 paragraphs
Bank of Africa Kenya Ltd & another v Mugah & another (Civil Appeal 34 of 2020) [2023] KEHC 17575 (KLR) (17 May 2023) (Ruling)
Neutral citation: [2023] KEHC 17575 (KLR)
Republic of Kenya
In the High Court at Kisumu
Civil Appeal 34 of 2020
RE Aburili, J
May 17, 2023
Between
Bank of Africa Kenya Ltd
1st Appellant
Garam Investments (Auctioneers)
2nd Appellant
and
Elijah Jacktone Odhiambo Mugah
1st Respondent
George Ochieng
2nd Respondent
(Being an appeal from the Judgment and Decree of Hon. R. K. Ondieki (SPM) delivered at Kisumu in Chief Magistrate’s Court ELC Case No. 424 of 2018 (formerly Cause No. 153 of 2016)
Ruling
1. I have considered the application dated 27th October 2022 seeking for an order for release of Kshs.738,750/= plus interest as deposited by the Appellant as security for the due performance of decree on appeal.
2. I have also considered the grounds, the supporting affidavit and the annextures.
3. I observe that the judgment in this case as delivered on 30th March 2022 allowed the appeal herein and in effect, dismissed the Respondent’s suit in the lower court.
4. As the decree was monetary, with the Appellant having deposited into a joint interest earning account the security for due performance of decree, and as the Appellant is now the successful litigant, I hereby allow the application dated 27th October 2022.
5. I order that the sum of Kshs 738,750 together with all accrued interest which sum was deposited in Account No. xxxx at Equity Bank, Angawa Branch, Kisumu in the joint names of Oundo Muriuki & Company Advocates and Omondi & Company Advocates be and is hereby released to the Appellant’s Account at Bank of Africa Limited, Account No.xxxx in the name of Misc Customer.
6. The said Bank Account Number xxxx at Equity Bank, Angawa Branch, Kisumu, shall upon the release of the said sums of money, be closed forthwith.
7. This Ruling be typed and order extracted.
8. I make no orders at to costs.
9. This file is accordingly closed.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 17TH DAY OF MAY, 2023R. E. ABURILIJUDGE